Robert Mueller says three especially important things:
1) If Mueller’s team would have concluded the evidence exonerated the President, they would have said so, but they specifically said the opposite: “the evidence does not exonerate the President.”
2) The team nevertheless “determined not to make a binary determination” on the President’s guilt. That is, they did make not make a declaration of guilty or not guilty only because they decided not to make a “traditional prosecutorial judgment” of any kind.
3) A central reason for the Mueller team’s failure to make that judgment, despite the overwhelming evidence of obstruction they have reported, is two opinions rendered by the Department of Justice’s Office of Legal Counsel (OLC) — one from 1973 and another from 2000 — which say that the indictment of an incumbent President is “impermissible.” Mueller concluded that as an operative of the Department of Justice (DOJ), he was bound to follow that guideline, and he lateralled the decision to Congress.
But here’s the thing: There is not a syllable in the text of the Constitution that supports the conclusion reached by either the Nixon-appointed OLC lawyer that Nixon was immune or the Clinton-appointed OLC lawyer that Clinton was immune. The foundation of Mueller’s reluctance to indict is rotten to the core.
As I have written previously, both of the OLC opinions upon which Mueller relied have been described by scholars as “shaky” and “political.” Indeed, recent historical discoveries (of which Mueller might not even be aware) make them even weaker.
To rehash what happened:
The OLC rendered the first such opinion in 1973. On its face, it is dubious. It derived from the Department’s criminal investigation of Vice President Spiro Agnew. I was a member of Agnew’s legal team, and we argued the issue directly with Attorney General Elliot Richardson. We were hardly objective historians. We were advocates for our client, and we advanced the theory that an incumbent Vice President was immune from criminal prosecution. One of the bases of our argument was that inasmuch as some scholars opined the Article II President was immune, the Article II Vice President must be immune as well.
Richardson sent the question to the OLC and asked for an objective opinion. What he got, instead, was a politically dishonest one. To use one of President Trump’s preferred terms, the OLC response was “rigged.”
The truth was recently uncovered via the historical research done by Michael Yarvitz, a producer for The Rachel Maddow Show. Yarvitz, working on the background of the Agnew case for what is now the Peabody-nominated podcast, Bag Man, located Richardson’s Executive Assistant at the time, J. T. Smith. Smith recalled that the OLC lawyer who ultimately researched and wrote the opinion, told Smith that the matter of who was immune from prosecution was unclear.
But instead of saying so in his report, this OLC lawyer took the easy way out and asked Smith, What does the Attorney General want me to say? Smith admits telling the OLC lawyer, in effect, The Attorney General wanted a report saying the Vice President was not immune. The OLC lawyer obeyed.
In an opinion that obliged the wishes of both the Attorney General and the President (each of whom wanted Agnew gone for different reasons), the OLC opinion writer threaded the needle, and as a bonus, in the tradition of political loyalists, answered a question he was not asked: He concluded that while Agnew was not immune, Nixon was.
Decades later, the question came up again. In 2000, while President Bill Clinton was under attack for possible criminal indictment for perjury, his Department of Justice produced an update to the 1973 opinion. By then, the Supreme Court had rendered two opinions that established a doctrine of Presidential vulnerability:
In Nixon v. U.S., the Court concluded the President was not immune from a grand jury subpoena, and in Clinton v. Jones, the Court held the President was not immune from a civil suit for damages arising out of his conduct prior to his inauguration. Nevertheless, the Clinton-appointed OLC, citing the 1973 opinion, concluded that Clinton was immune from prosecution.
It is notable that both OLC opinions rely on practical considerations: The President now carries a heavier burden than he did when the Constitution was adopted, they argue, and therefore the President has become too busy to deal with an indictment. One can imagine the late Justice Antonin Scalia hearing such an argument and scolding the DOJ lawyer with his famous remark, “[The Constitution] is not a living document. It’s dead, dead, dead.” Inasmuch as neither opinion cites constitutional language clearly supporting its conclusion, one assumes a conservative Supreme Court — like the one we have now — would apply the Scalia “textual” approach to constitutional interpretation, and firmly reject both OLC opinions. Regardless of Attorney General William Barr’s bogus decision that no charges should be brought, this matter deserves its day in court.
Had the rigid Mueller applied the law instead of politically rigged DOJ doctrines, Trump’s now famous prediction may have actually come to pass: In his own words, he would be “f–ked.“
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